Kleihege v. State

• Decision Date: 24 June 1931
• Docket Number: No. 25675.,25675.
• Parties: KLEIHEGE v. STATE.
• Court: Indiana Supreme Court

177 N.E. 60

KLEIHEGE

v.STATE.

No. 25675.

Supreme Court of Indiana.

June 24, 1931.

Appeal from Criminal Court, Lake County; M. E. Crites, Special Judge.

William Kleihege was convicted of conspiracy to commit a felony by placing, or causing to be placed, certain explosives within a theater building for the purpose of destroying it by fire and explosion, and he appeals.

Affirmed.W. J. Whinery and McAleer, Dorsey, Gillett & Clark, all of Hammond, for appellant.

James M. Ogden, Atty. Gen., Burke Walker, and George W. Hufsmith, Deputy Attys. Gen., for the State.

MARTIN, C. J.

Appellant, with five others, was charged by affidavit under section 2882, Burns' 1926, with conspiracy to commit a felony prohibited by section 5, c. 44, Acts 1927, section 2442.3, Burns' 1929 Supp., to wit, placing, or causing to be placed, certain explosives within the State Theatre building at Hammond for the purpose of destroying the same by fire and explosion. He was tried separately by a jury, which returned a verdict of guilty. The judgment imposed a fine of $1,000 and imprisonment in the Indiana State Prison for not less than two, nor more than fourteen, years.

[1][2] The alleged error assigned on the action of the court in overruling appellant's motion in arrest of judgment calls in question the sufficiency of the affidavit to state a public offense. Appellant first contends that section 5, c. 44, Acts 1927, which defines the purposed felony, is in conflict with section 19, art. 4, Const., section 122, Burns' 1926, and void for the alleged reasons (1) that the subject thereof is not embraced in the title of the act and (2) that the title of the act embraces more than one subject. The title referred to is: “An Act concerning the crime of arson and certain other crimes connected with the destruction or attempted destruction of property by fire or explosion. ***” All the crimes defined by the act are connected with the destruction of property by fire or explosion, they are logically and properly grouped together in this statute, and we hold that the subject of section 5 of the act is embraced in the title thereof and that such title does not embrace more than “one subject and matters properly connected therewith.”

[3][4] Appellant also argues that the body of the affidavit charging the purposed felony is bad for duplicity by following the wording of the statute, which is also alleged to be duplicitous. A question of duplicity in the body of a charge which contains all the essential elements of a public offense is one of the many defects in pleading that may be attacked by a motion to quash, but which is not available on a motion in arrest of judgment. Chandler v. State (1895) 141 Ind. 106, 110, 39 N. E. 444;Woodworth v. State (1896) 145 Ind. 276, 278, 43 N. E. 933;Campton v. State (1895) 140 Ind. 442, 444, 39 N. E. 916;Stewart v. State (1888) 113 Ind. 505, 509, 16 N. E. 186. However, if such question were properly raised, the court would be bound to follow the rule that, where a statute makes it a crime to do any number of things disjunctively, all of which are punishable alike, the whole may be charged conjunctively in a single count without duplicity. State v. Schipper (1923) 193 Ind. 595, 141 N. E. 330;Scheerer v. State (1925) 197 Ind. 155, 149 N. E. 892.

By the first and second grounds of his motion for a new trial, the overruling of which is assigned as error, appellant challenges the sufficiency of the evidence to sustain the verdict of the jury. The state's principal witness, Joseph Million, was an alleged accomplice of the appellant. He testified that he formerly had been a moving picture operator at the State Theatre, had been convicted of “complicity in this bombing” (of the theater), and was serving a sentence of from one to three years therefor. He stated that he met the appellant on the street, near the middle part of October, 1927, in front of the empty stores in the State Theatre building; that the appellant said he wished the State Theatre was “clear dead” and “off the map,” and that he (Million) asked him, if it was his theater, why he did not close it up and put it off the map, that appellant said it was not a bad idea, could it be done, and how much would it take. Million told him $2,000. By agreement they met at the same place three days later (during the last week in October), when appellant gave Million $2,000 in twenty and ten dollar bills (the denominations Million had requested), and told Million he wanted explosives placed in the orchestra pit of the theater near the organ keyboard, and wanted the stage, organ, and stage hangings destroyed.

Million, who had “had some fairly intimate dealings with Chicago racketeers,” knew that “Chicago unions employ racketeers regularly,” and knew the record of one Harry Ames, went to see Ames at the labor temple in Hammond or at his office, and asked him if he was interested in making some money. Next day, or soon thereafter, he told Ames what he wanted done, that he wanted to place a “pineapple” (an explosive bomb) in the State Theatre big enough to destroy the organ, stage, and stage hangings. After some controversy over the amount to be paid to Ames, $1,000 was agreed on and paid in advance, Million testifying that that is “customary,” and that “you can generally trust a man *** to go through with it,” that being “a business code among racketeers.” Million told Ames how to get into the theater by manipulating a certain door.

The details of the dynamiting appear in the testimony of Ames, who was a business agent of a labor union, and who testified that he “got from one to three years” and was “serving a sentence for misusing dynamite,” and of Marwood Williams, a labor union trustee, who went with Ames on his felonious mission, and who testified that he was serving a sentence of one to three years, having pleaded guilty “to placing explosives on another man's property.” Ames and Dean Maloy and “an Italian fellow” named Tuto, alias Paris, met at the labor temple about 6:30 p. m. November 7, 1927. They were talking about blowing up the State Theatre, “said they were going to ‘hoist’ it,” and asked Williams to go along if he wanted to make a little easy money. The party of four then left the labor temple in Ames' automobile with the package of dynamite in the rear seat, went to Jackie Filan's place and John Vitoe's saloon in Calumet City, Ill., where they drank whisky for two hours, and then drove around Calumet City and Hammond, passing the time till 1:30 a. m., when they drove to the State Theatre. Ames and the Italian went inside for about five minutes. Ames placed the bomb in an aisle on the main floor of the theater (disobeying his instructions to place it in the orchestra pit for fear it would blow down another house across the alley), and lighted the ten-foot fuse attached thereto. After the bomb squad left the theater and were driving down Calumet avenue, they heard the explosion, and “Ames said, ‘there she goes,’ that's all that was said.” Ames testified that he asked Million “who wanted the work done,” and that Million told him “they were losing a lot of money in the State Theatre and Kleihege had something to do about it.” The destruction wrought the theater building, both inside and out, was terrific, as shown by photographs which are in the record.

More than three-fourths of the voluminous evidence introduced by both the prosecution and the defense was devoted to the questions of appellant's financial interest in the State Theatre, his other theatrical interests in Hammond, and the financial loss of the State Theatre for several months preceding the explosion. The State Theatre building at Hammond was built in 1925 by the Merchants' Improvement Association at a cost of $1,050,000. It contained five storerooms, a ballroom, and a theater seating 3,200 people, which was equipped at a cost of $70,000. The theater was leased in September, 1926, to Andrew Karzos for fourteen and one-half years, the rental for the first two years being at the rate of $5,250 per month, and $6,833.33 per month for the balance of the term of the lease. (The lessor's interest in the lease was assigned to a trustee for the American Bond & Mortgage Company which held a first mortgage lien for $900,000 and a second mortgage lien for $250,000 on the building.)

In May, 1927, Michael Kozacik, owner of theaters at Indiana Harbor and East Chicago, Ind., and William Kleihege, appellant, owner of all the theaters in Hammond except the State Theatre (hearing that Karzos was selling certain theatrical interests including the lease on the State Theatre, to Balban and Katz, large theater owners in Chicago), began negotiations through James Coston of Chicago, which resulted in their acquiring ownership of the stock in the Northern Theatrical Company, to which company Karzas assigned his lease. The stockownership in this company was: Kleihege, who became president, 45 per cent., Kozacik, who became secretary-treasurer, 45 per cents., and Coston, who became vice president, 10 per cent. They paid $55,000, $15,000 of which was cash, and agreed to assume a $50,000 guaranty of the lease and a $21,000 Vitaphone contract. Kleihege and Kozacik each put up $11,250 in cash, and Coston $2,500, leaving, after the $15,000 cash payment, $10,000 for operating expenses. They started operating the State Theatre in June 1927. In the six months they operated the theater they suffered and paid a loss of over $40,000. Of this amount appellant paid half. Appellant and the others interested in the management disagreed and argued over the kind of programs and the policy of the theater. Appellant was also interested in maintaining the business of his other theaters in Hammond. There was testimony that on two different occasions appellant had said, “like he meant it,” and “if the maniac who had blown up the Michigan school had blown up the State theatre it would not have resulted in the loss of life and he would...